The Fair Work Commission (FWC) found that procedural failings by the RBA’s HR function had made the employee's dismissal unfair and described the failings as “inexplicable” for a large organisation.
The employee sent a message to an RBA WhatsApp chat group while walking his children to school, making derogatory remarks about Asian children that compared their learning styles unfavourably to those of white people. When another user replied that the message was rude and inappropriate, he sent two more messages, one that swore and another that apologised to anyone offended. Although he deleted the messages quickly, another employee sent a screenshot of the first one to other employees.
The RBA claimed that viewing the original post had a “serious impact” on other employees and that the employee’s actions were a breach of its Code of Conduct and Workplace Behaviour Policy. The employee agreed with that and agreed that his comments were racist, but claimed that he had only intended to send the message to his wife, not the co-workers.
The RBA claimed that the employee genuinely held the views that he had expressed. It claimed that this was supported by his later comments to his wife of “Honestly. It’s mine. I’ll own it. It’s how I feel anyway”. However, the FWC concluded that these remarks were his acknowledgement that his original comments were impolite, not an admission that he held intransigent racist views.
The FWC agreed that the comments were racist and should not have been made in a working forum, even accidentally. However, it took into account the context that influenced the employee to make them (his own son’s learning difficulties) and the fact that he deleted them quickly and apologised before he was dismissed. What was left was a technical and clearly unintentional breach that on its own did not justify dismissal. Nor did holding a racist view and expressing it outside the work context and in relation to a non-work matter. Reacting and apologising quickly also indicated that he would not make the same mistake again.
The employee claimed that other employees at work referred to him as “Token White Guy” or “TWG” and he had removed himself from two other WhatsApp chat groups because of it. Two had claimed to be offended by his conduct, and one of them had claimed she would resign that if he returned to work. However, evidence indicated that her real reason was his counter-claim that she had used the TWG term. He also claimed he had been bullied in the past by other employees, and suggested that the complaints about his posts may have come from those sources.
He claimed he had taken immediate action to delete the posts and apologise, and had shown genuine remorse for his actions.
Faulty dismissal process
The FWC found that the RBA did not notify the employee before dismissal of its reasons for doing so, merely telling him he was being investigated and did not give him any opportunity to respond to its allegations of a breach of its Code of Conduct. The RBA had claimed that he had already received a warning for making inappropriate or combative comments, however, this was incorrect and he did not receive an opportunity to correct the record.
Given the RBA’s in-house HR “expertise”, the FWC described its procedural errors as “simply inexplicable” and said that it failed to provide evidence that other employees were offended.
The RBA opposed his reinstatement, claiming that his racist views were incompatible with the RBA’s values and would prevent him from working with Asian co-workers.
Decision
The FWC found the employee’s conduct to be racist initially, but the immediate retractions provided context that made them less so, reducing them to “mid-range”. The employer’s claim that two employees were seriously offended by the posts was not substantiated, their actual reaction was mildly negative. His breach of the Code of Conduct was inadvertent, not wilful.
Overall, his dismissal was unfair. A potential substantial loss of superannuation benefits added to its unfairness. The FWC ordered reinstatement with continuity of service. It found that the employee did not hold the racist views alleged against him, had apologised for any offence caused, and shown he was willing to maintain effective work relationships.
The bottom line: This decision indicates the importance of individual context when deciding how to respond to an incident, or a complaint, of racism. The employee’s actions were racist, but their communication to other employees was accidental and the employee acted quickly to try to redress the situation. There was no evidence that other employees were clearly offended by what happened, nor that a “reasonable” person would have been offended, given the context.
The FWC decided that his conduct was not serious enough to justify dismissal. But what may also have saved his job was that the employer botched the process of investigating the incident and implementing his dismissal.
